            REFLECTIONS ON THE AMERICANS WITH DISABILITIES ACT 
                           by Kenneth Jernigan 
  
No proposed piece of legislation during the past thirty years has 
created more comment and soul searching among the disabled of this 
country than the Americans with Disabilities Act. The bill passed 
the Senate in 1989 and at the time of this writing (early 1990) is 
awaiting action by the House of Representatives. At first glance it 
would seem that no disabled American could possibly object to this 
bill. It would be like opposing motherhood, Santa Claus, and the Easter 
Bunny--but some do oppose it, and even more have serious reservations 
about it in its present form--that is, the form in which it passed 
the Senate and is now being considered by the House.  

At its 1989 convention in Denver, Colorado, the National Federation 
of the Blind passed a resolution declaring that if the bill could 
not be amended to cure its weaknesses, it should be opposed. In the 
circumstances it seems desirable to examine the proposed law and consider 
its possible advantages and drawbacks. Obviously it is not easy to 
oppose such legislation, for the enthusiasm of those who favor it 
is at such a fever pitch that any cautionary comments (regardless 
of how sound or constructive) are likely to be taken out of context, 
distorted, or twisted to convey meanings they were never intended 
to have. Nevertheless, this legislation is so far-reaching and
all-inclusive that it cannot be allowed to go forward without analysis--so
here is how we see it, how we think it affects the blind as it is currently
written, and how we think it should (at a minimum) be amended. 
 
                                 Purpose 
 
The bill as it passed the Senate says that the purpose of the Americans 
with Disabilities Act is "To establish a clear and comprehensive 
prohibition of discrimination on the basis of disability."  The 
proponents of the legislation say that it will give to qualified
individuals with disabilities the right to equal participation in
employment, public accommodations, transportation, and other activities.
They say that it will do this by mandating special accommodations for the 
disabled. But some of us who have doubts about the requirements of 
the Act feel that by eliminating certain problems and discriminations 
it may actually create others. Particularly, we are concerned that 
the bill is so written that the disabled may (whether they need them 
or not) be required to accept the special accommodations mandated 
by the bill and (regardless of their abilities, desires, or circumstances) 
be prevented from using the same facilities and services that are 
available to others. 
 
                        Background on the Americans
                       with Disabilities Act and its
                         Comparison with Existing
                            Civil Rights Laws 
 
The Americans with Disabilities Act has been proposed to prohibit 
discrimination against persons with disabilities. Under the bill it 
would be discriminatory to deny disabled persons access to (1) employment; 
(2) services, programs, and benefits of state and local governments 
(including public transportation); (3) public accommodations and
transportation provided by private entities; and (4) telecommunications
services. 
 
Section 504 of the Rehabilitation Act of 1973 was the first federal 
nondiscrimination statute of general applicability to "handicapped 
individuals."  The law itself originally consisted of one sentence, 
specifying that recipients of federal aid could not subject otherwise 
qualified handicapped individuals to discrimination under any program 
or activity receiving or benefiting from federal financial assistance. 
The Americans with Disabilities Act significantly extends this requirement 
and vastly expands its reach.  

Following the language and concepts of the section 504 regulations, 
the Americans with Disabilities Act identifies physical barriers to 
the disabled as discriminatory. The premise of the bill is that limits 
on physical access lead to restricted participation or outright denial 
of opportunity. Under the bill, opportunities are to be barrier free. 
A legal standard of what is called "accommodated participation" 
is used as the rule of thumb for nondiscrimination. Physical accessibility 
requires modifications to architectural design features. Changes in 
programs in order to accommodate them to the physical limitations 
of the disabled are also required. 

The premise of the section 504 regulations has been that the standard 
for prohibiting discrimination against disabled persons differs
substantively from the standard used in the Civil Rights Act of 1964. The
standard used in that Act (the Civil Rights standard) is that race, sex,
national origin, and religion must not stand in the way of equal
opportunity. "Equal participation" must be afforded to everyone regardless 
of differing traits.   

The Americans with Disabilities Act uses the accommodated participation 
standard first developed with the section 504 regulations. Rather 
than being disregarded, disability must be considered. Equal opportunity 
as contemplated in the Americans with Disabilities Act means participation,
with or without modifications. Failure to accommodate programs to 
the disabled (or failure to provide services that are separate or 
different from the services provided to others) is expected to result 
in a denial of opportunity and is, therefore, to be considered
discriminatory. 
 
The Americans with Disabilities Act does not outwardly reject the 
equal participation standard of the Civil Rights Act, but in emphasis 
the bill strongly favors accommodation--modifying buildings, buses, 
airplanes, and the environment in general--as well as the establishment 
of separate programs. In some instances (with respect to some disabilities)
it may be reasonable to argue that accommodations must be made to 
prevent discrimination. In other instances (such as in the case of 
discrimination against the blind) so-called "accommodations" 
may often themselves be discriminatory. This fact must be considered 
in the further development of the Americans with Disabilities Act. 
Otherwise, the Act itself could become a source of unintentional
discrimination against some persons with disabilities.    
 
                        Nature of Discrimination on
                           Grounds of Blindness 
 
Blindness is unquestionably a disability as that term is defined in 
the Americans with Disabilities Act. This inclusion implies that
discrimination against the blind arises primarily from lack of physical
access--or lack of special "accommodations."  The implication is not 
only incorrect; it is dangerously incorrect. Structural characteristics 
do not ordinarily prevent blind persons from having full and equal 
access to any buildings or facilities used by anybody else.  Blind 
persons are customarily able to use programs, services, and facilities 
without modification.  

Discrimination against the blind comes from the false assumption that 
sight is essential for successful performance of most tasks. Blindness 
is the inability to see, but it is not generally disabling. Alternative 
techniques used by blind persons work as well, and as efficiently, 
as visual techniques used by sighted persons. It is, therefore,
discriminatory to require the blind to be treated differently from the
sighted when such treatment is not warranted. Unwanted accommodations for
the blind discriminate by falsely portraying the blind as limited in ways
that they are not.  

Increased attention to civil rights for the disabled has led to misplaced 
and discriminatory uses of accommodation. One example is offering 
a wheelchair to assist a blind person in moving through an airport 
or similar facility. If the blind person rejects the offer, preferring 
to walk, it is not unusual for airport officials to try to force the 
blind person to use the wheelchair. What starts as an attempted 
"accommodation" is now discrimination. Another example is insisting that
all blind people must sit at the front of public buses because those seats
are designated for the elderly and handicapped. In either example, the 
blind person who can walk and move as well as anybody else is made 
to appear as limited. The person may, indeed, be permitted to have 
access to the building or the bus, but the access is certainly on 
discriminatory terms for that blind individual or for the blind as 
a class.  

The experience of the blind with Section 504 should be instructive. 
Programs are now established to, as the terminology has it, "take 
care of" the needs of the blind. In the bus example, Section 504 
clearly prohibits denying service to the blind. It does not clearly 
prohibit the bus driver from insisting that a blind person sit in 
one of the front seats designated for the elderly and handicapped. 
Some may regard disputes about seating as quibbling, but Rosa Parks 
and others brought the entire civil rights movement to a national 
focus by exactly this type of issue. Section 504 requires that disabled 
persons be accommodated on the bus. If blind persons who are capable 
of sitting anywhere are forced to accept seating accommodations and 
use the seats designated for the elderly and handicapped, they are 
being subjected to arbitrary and unreasonable restrictions.  
It is exactly this type of situation, resulting from Section 504, 
that the blind find objectionable. We are expected (in fact, often 
"required") to act as if we are disabled in ways that we are 
not. Accepting the blind on terms of full equality is the proper policy 
of nondiscrimination. Conversely, it is discriminatory to assume that 
participation for the blind is made possible only by means of what 
are called "accommodations."  When that assumption is applied, 
the result is discrimination--treating the blind as disabled in 
ways that they are not.  
 
                         Need for a Participation
                     without Modification Amendment In
                   the Americans with Disabilities Act 
 
Serious problems of unintentional (but very real) discrimination arise 
from the "accommodated participation" standard in the Americans 
with Disabilities Act. As with women and minorities protected by the 
Civil Rights Act of 1964, the most appropriate legal standard for 
the blind and others is "equal participation."  This means 
that the terms and conditions of participation are applicable alike 
to all persons. Accommodated participation means that modifications 
must be made so that persons with disabilities will be given an
opportunity.   

"Disability" under the Americans with Disabilities Act is 
treated as a generic condition. This leads to inappropriate use of 
accommodated participation. The fact is that the blind have the unique 
condition of not seeing, which is not generally disabling. Discrimination 
occurs against the blind when blindness is treated as generally disabling. 
The experience of the blind with the airlines exemplifies the problem. 
 
The advent of federal civil rights laws for handicapped individuals 
brought pressure on commercial airlines to serve persons with disabilities.
Physical barriers of aircraft and equipment had prevented service 
in some instances--particularly, to those using wheelchairs. This 
was never a problem for the blind. In the case of the blind, air
transportation was almost always provided on essentially nondiscriminatory
terms. We bought our ticket, got on the plane, sat where we chose, left the
plane at our destination, and went about our business like anybody 
else. Certainly (in contrast to the situation of some disabled persons) 
there were no policies to deny or restrict service to the blind. Blindness 
was not regarded as a disability for purposes of air travel.  
The pressure brought on commercial airlines by persons with certain 
disabilities (particularly, those with orthopedic problems) may have 
been necessary, but the effect it has had on blind persons has been 
a civil rights disaster. When the airlines and the Federal Aviation 
Administration began to plan ways of, as the term is used, "accommodating" 
the handicapped in order to (again, as the jargon has it) "serve" 
them, they included the blind in the general category. All of a sudden 
it became unacceptable to think of the blind as not disabled for purposes 
of air travel. So the blind were made to be disabled--and restrictions, 
thought to be appropriate for the disabled, have been wrongfully imposed 
on the blind ever since. This policy has now been pursued (first
condescendingly and then when the blind objected, aggressively and with
hostility) by the airlines. Ironically, the net effect of the civil rights
laws for the disabled has been to place new and unwarranted restrictions 
on the blind in air travel. This is the result of the generic disability 
approach in setting the standard for nondiscrimination.  

Relying on federal law, the airlines are now attempting to make the 
blind disabled in ways that they are not. This and many other examples 
justify the concern of the blind that the Americans with Disabilities 
Act will cause unintentional, massive discrimination. The bill (as 
introduced and passed by the Senate) presumes that disability (every 
disability) implies the need for what is called an "accommodated" 
form of participation. Covered entities will want to comply with the 
Act by making accommodations, especially those of minimal cost. As 
with the airline example, the blind will be expected to accept policies 
which apply to the generic "disability" class, including accommodated 
participation and the restrictions that necessarily accompany it. 
The "accommodated participation standard" is perhaps appropriate 
for many persons with disabilities. This standard may help make their 
participation possible. For blind persons, however, the accommodation 
standard incorrectly assumes a degree of inability and directs unwanted 
and even harmful changes. The individual's true abilities are overshadowed 
by "accommodated participation," and the changes made become 
the focus of everyone's attention. It is assumed that the individual 
could not participate were it not for the "accommodation." 

To use another example, some people now assume that blind people cannot 
cross street intersections without special signaling devices. The 
devices are audible traffic signals which emit a sound (often a bird 
call) to indicate the changing of the traffic lights. The modification 
has been promoted by persons who assume that blind people will not 
know when or where to cross the street if they are not given a special 
audible cue. But rather than being a form of assistance to the blind, 
this adaptation becomes (in the minds of most blind persons) a hindrance, 
falsely presuming that blindness is an impairment to street crossing. 
The fact is that blind people cross streets by themselves every day 
without audible traffic signals. We have been doing so ever since 
cars, street crossings, and traffic lights were invented. The sound 
of the traffic and the direction of its flow give all the information 
that is needed. An audible traffic signal adds nothing, and many blind 
people say that the additional sound only confuses them. Most
significantly, this modification implies that the blind cannot cross
ordinary streets. 

In this respect, it is a damaging and false public statement that 
the blind are disabled in ways that they are not. To give only one 
example of the damage, potential employers will be less likely to 
offer jobs to the blind because of the implication of helplessness 
and the specter of added costs for special modifications and accommodations
in these businesses and neighborhoods. 

It is harmful to blind persons to have accommodations being made for 
them that falsely imply limitations caused by blindness which do not 
exist. Opportunities necessarily depend on public understanding and 
social acceptance. This will be the case with or without the Americans 
with Disabilities Act. Blind people want to be accepted on terms of 
equality with the sighted, having the opportunity to succeed or fail 
on merit and being judged on their ability to perform. This is a proper 
and realistically achievable objective. Our equality will be blocked, 
however, if we are faced with a federal law that implies a degree 
of permanent inequality. 
 
 
                  Explanation of the Right to Participate
                      Without Modification Amendment 
 
The amendment we propose would prohibit discrimination against qualified 
individuals with disabilities by clarifying each person's right to 
participate in programs and activities that are not separately established 
for the disabled or modified for their use. The bill already requires 
accommodated participation when necessary to give persons with disabilities
opportunities that would otherwise be denied.  

The amendment, entitled "Right to Participate Without Modification" would
provide each person with a disability the right to participate 
in programs and activities that are not separate or different from 
the programs and activities used by others. It would provide that 
the existence of separate forms of participation for the disabled 
may not be used to deny an individual the opportunity to participate 
in the same programs that others use. The amendment would require 
that modifications made for persons with disabilities shall not impair 
the choice of any such person to participate without modification. 
Despite our resolution at the 1989 NFB convention in Denver in July, 
which stated that we would oppose the Americans with Disabilities 
Act unless it could be amended, Congress and the Administration moved 
forward in steamroller fashion to pass the bill as it was written. 
When word began to circulate in Washington in mid-November that the 
National Federation of the Blind meant what it was saying and might 
actually come out against the Americans with Disabilities Act, a number 
of the proponents of the bill became concerned. This is where a man 
named John Wodatch comes into the picture. He is the Deputy Section 
Chief, Coordination and Review Section, Civil Rights Division, United 
States Department of Justice. Mr. Wodatch is the Bush Administration's 
foremost legal expert on disability-related federal civil rights policy. 
His involvement in this area dates back to the original Section 504 
regulations issued by the Office of Civil Rights of the Department 
of Health, Education, and Welfare. He did most of the staff work in 
the negotiations, development, and writing of HEW's original 504
regulations, which were published in 1977. By virtue of his background and
position, Wodatch has become one of the Bush Administration's key staff
level negotiators on issues relating to the Americans with Disabilities 
Act. 

After hearing of our potential opposition, Mr. Wodatch called us to 
attempt to negotiate language for an amendment that we could support. 
It was at about this same time (just before Thanksgiving) that Congressman 
Christopher Cox agreed to offer our amendment in the House. Wanting 
to coordinate his efforts with the Administration, Congressman Cox 
sent our amendment to John Wodatch. At the time of this writing,
Congressman Cox is prepared to offer our amendment--particularly, if it can
be negotiated with the Administration first. 

To this end Mr. Gashel and Mr. Maurer met with White House Staff on 
January 19, 1990. They felt that the meeting was quite successful 
and that the likelihood is that an amendment which we can support 
will be agreed to. Otherwise, we must oppose the bill as vigorously 
as we can if it is to remain in its present form. 

But are our concerns exaggerated and overdramatized? For instance, 
is it really conceivable that if a hotel has set aside one room with 
a visible fire alarm for the deaf or special markings or devices for 
the blind that a deaf or blind person would be denied the right to 
rent any other room in that hotel? Is this not far-fetched and unrealistic?

Not at all. John Wodatch sent us the following statement last December, 
and this is a direct quote: 
 
Problem: In a case where a deaf person refuses to take a hotel 
room with the visible fire alarm system because another room has a 
better view or is near a friend, is the hotel liable for harm if fire 
breaks out? Does the statute need some form of assumption of risk 
doctrine specified? (E.g., language like "provided that the entity 
providing such service shall not be liable for harm resulting from 
the refusal to accept such accommodation or modification." 
 
This is what Mr. Wodatch said, and much of the discussion which we 
have had with Congressional and Administration leaders has centered 
around the point of liability and responsibility. As the bill passed 
the Senate, it seems likely that many of the old discriminations and 
stereotypes which we had thought were long behind us will be revived. 
Hotels may refuse to permit blind persons to rent rooms above the 
ground floor, claiming that the stairs or elevators would be a hazard. 
We could be segregated in specially modified rooms and not permitted 
to have rooms near those traveling with us. We could find ourselves 
forced by bus drivers to sit in special seats, segregated from family 
or friends--and all in the name of safety and protecting our civil 
rights. Moreover, the courts might well use the language of the Americans 
with Disabilities Act to support these decisions and cause major setbacks 
in our struggle for equal treatment and enlightened policy. 

We do not want to hinder the progress of other groups of the disabled, 
nor do we want to engage in controversy or scare tactics. But we have 
lived with discrimination and unreasonable treatment, and we do not 
intend to lose our hard-won gains--even if it be in the name of 
civil rights. 

Although it seems unlikely that the Americans with Disabilities Act 
can do very much to help the blind, we will not oppose it if it can 
be amended so as not to deprive us of our civil rights, but if it 
cannot be so amended, we will do anything we can to slow it down and 
block its passage. This is the only responsible course of action which 
the blind of this country can adopt. Simply because a thing calls 
itself civil rights, that does not mean that it is civil rights. 
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